April 16, 2013

I was surprised at the blunt expression "the Court's left." Is that the way we talk now? In class, I take the trouble to apologize for resorting to using the expressions "the liberal side of the Court" and "the conservative side of the Court." It's inappropriate and inaccurate for some reasons, and I don't mean to say that "conservative" and "liberal" applied to the Court mean what they mean in the political context, but it does save time. One could save even more time with "the Court's left" and "the Court's right."

Should we say "the Court's left" and "the Court's right"?

Yes. Blunt talk is best and the Court is political.

Yes. It saves time and it's close enough.

No. It desensitizes us to the inaccuracy of thinking of the Court as political.

No. It's accurate, but it implies that a political Court is normal or even good.

There is absolutely nothing that can be done about this other than admit it. The reason our whole society is divided up basically on two sides is because of lawyers. That's the way they see the entire world, and the more involved in something they are, the more contentious and adversarial it is.

I would describe the 2 sides this way: 1) the side who believes the constitution is a document which forms a solid foundation upon which all law is based. and2) the side which believes the constitution is a living document which can mean whatever we want it to mean and serves only to enable the enforcement of laws now seen to be in vogue.

I don't see it as accurate. There is definitely ideology on the court, but there isn't a simple left / right divide, as shown by the recent decision with Scalia, Thomas, Ginsberg, Sotomayor, and Kagan in the majority and Roberts, Alito, Kennedy, and Breyer dissenting.

People too often try to fit a court decision into ideology rather than issues of law. This is worst when the court rules on a procedural manner and headlines say "court upholds / strikes down" the underlying political issue, which wasn't even considered.

An agricultural product is grown, harvested, and consumed within a single state, with no money changing hands. The federal government claims the right to regulate that product on the basis that these actions constitute interstate commerce. The Supreme Court agrees.

In the light of these events, how is it possible to claim that the Court is not political?

Thomas W said...I don't see it as accurate. There is definitely ideology on the court, but there isn't a simple left / right divide, as shown by the recent decision with Scalia, Thomas, Ginsberg, Sotomayor, and Kagan in the majority and Roberts, Alito, Kennedy, and Breyer dissenting.

People too often try to fit a court decision into ideology rather than issues of law...

One could theorize various reasons for predicting an individual SCOTUS justice's behavior. Maybe he/she is God-like, judging without prejudice or bias, with malice toward none. Maybe he/she is biased, voting merely to forward his/her preferred policies. Maybe he/she is just stupid and unpredictable. Maybe he/she is hopelessly swayed by another justice.

The simplest answer is that they are biased, but not stupid. They vote the way they want policies to go, but they know they can only go so far, given America's hard-structured legal system.

The Court's left is clearly, intractably and predictably left and grounded by nothing but the whimsy of its members and the bleating of progressives. The Court's right, not so much, since it is grounded in the history and verbiage of the Constitution - usually.

The court, from my non lawyer readings, has in some measure always been, for lack of a better term, political. Whether the 'justice' was a federalist or anti-federalist, to those who find "penumbras" where none exist, to those who believe that it means what they SAY it means, rather than what it says, the court is made up of flawed human beings with prejudices. Why should anyone in this day and age be surprised?

The two cases decided today (both by 5-4, with Kennedy the swing vote) have nothing to do with left vs. right. The first is an ERISA case holding that the ERISA plan trumps conflicting equitable rules but not if the rules are cited to fill a gap in the plan's coverage. That's the one in which Kennedy joined Kagan et al. The second is a bizarre Fair Labor Stds Act case, and goes off about mootness. Kennedy sides with Thomas et al. in that one.

The only real interest these cases have is in the writing style displayed by Justice Kagan. She's really on a roll. Here's a sample (from the FLSA case in which she dissents):

"As long as that remained true, Symczyk’s claim was not moot, and the District Court could not send her away empty-handed. So a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theory. And a note to all other courts of appeals: Don’t try this at home."

She writes in lawprof fashion, very breezy in tone but sharp in focus and logic. Wonderful.

An agricultural product is grown, harvested, and consumed within a single state, with no money changing hands. The federal government claims the right to regulate that product on the basis that these actions constitute interstate commerce. The Supreme Court agrees.

Yes, yes, but you will notice that the soi-disant "right side" of the court rather conspicuously split on that one.

No, because the terms are misleading. Left/right and liberal/conservative don't mean quite the same things when speaking of SCOTUS as they do when speaking of politics in general, and mapping SCOTUS to inapt political descriptions weakens the institution, which would be an unfortunate political development.

I like her writing style as well. As I recall, Chief Justice Robert's writing style was noted for clarity and wit as well; and Scalia's, for supposedly being "biting" and "mean." I like good writing that's clear and has some life to it.

I recall taking a course in college, in the (19)80's, on the history of the Supreme Court. The tome we used for that was always talking about the "right wing" of the court, even when the court was, to my mind, all liberals. But if you think a certain way, someone on the court has to be the "right wing," even if the court was populated by Kagan and Ginsberg clones; someone has to be just a bit to the right.

That's the sort of "process" way of thinking I recall seeing in Congressional Quarterly analyses (of Congress) years ago. Nina Totenberg talks this way about the court from time to time.

The term is accurate, but it is also problematic--it makes us question whether the "living constitution" idea is an exercise in bad faith.

As an historian, one can safely say that the prevailing interpretation of the constitution has changed over time.

But if a lawyer or professor of law says that the true and correct meaning of the constitution changes over time, he or she is implicitly admitting that the constitution means whatever one can convince others it means, and sophistry replaces the rule of law. Hence the conservatives on the court think it should "live" in one direction and the progressives think it should "live" in another.